By the report of March last, it appears that your office, in examining the abstract filed with the protest and application for supervisory action on the 6th of October, 1883, assumed that the conveyances therein purported to cover all the interests of the fourteen original claimants under the alleged location of the Gettysburg lode, in whose names the certificate of purchase constituting the entry was issued.

This it appears is a mistake, two of said persons never having made, so far as shown, any conveyance whatever of their original claims. It is also clear to my mind that the whole force and intent of the acquiescence of the Department in the waiver of any informalities whatever rested, and were so expressed, upon the supposed fact that all parties in interest would and did desire to accept a patent, if the same could be based upon the pending proceedings, and thus avoid the necessity for a new application, cancellation of the admitted entry, and consequent delay, and possible future conflict. Such consent, however, on the part of the Southwestern Company, whose interest was, in terms, recognized by your office and the Department, is positively disclaimed.

It is therefore apparent upon the face of the record that mistake has occurred, and that it is impossible to execute the decision. And such being the case, there is no rule of res judicata to prevent an examination and disposal of the whole case on its merits. Having heard counsel upon the foregoing, and reaching this conclusion, I accordingly direct the continued suspension of the matter, until the further order of the Department, with a view to allowing re-argument upon the questions: (1) Whether or not such validity attaches to the initiatory proceeding, in view of the apparently conflicting interests, as to allow patent to issue thereon; and

(2) Whether or not such substantial compliance with law is shown as would authorize a waiver of informalities in case it be found that the adverse proceedings constitute in themselves no bar to the claim of the applicants.

ENTRY-PURCHASE OF IMPROVEMENTS-PRACTICE.

CLEVELAND v. DUNLEVY.

The purchase of the improvements and possessory right of a homesteader confers no preference right of entry upon the purchaser as against a prior adverse settlement. Where suit is pending as to the right of entry and one of the parties thereto during the pendency of such suit charges the other with abandonment since the hearing therein, such charge will be heard on the termination of the pending case.

Secretary Lamar to Commissioner Sparks, August 28, 1885.

I have considered the above entitled case, involving the right to the NE. of Sec. 5, T. 111 N., R. 59 W., Huron land district, Dakota Territory, as presented by the appeal of Cleveland from the decision of

your office dated June 5, 1884, holding for cancellation his homestead entry No. 1775, covering said tract.

The facts, as shown by the record, are as follows:

On June 26, 1882, George M. Bartholomew filed his soldier's homestead declaratory statement No. 3331 for said tract and on December 29, same year, made homestead entry No. 1573 of the land in controversy. Bartholomew's relinquishment of said tract was filed in the district land office on January 23, 1883, by Cleveland, who, on the same day, made homestead entry No. 1775, for the land in question. On the day following, Dunlevy made homestead entry No. 1781 of said tract, alleg. ing settlement thereon November 27, 1882. Upon the application of Cleveland, your office, on August 8, 1883, directed that a hearing should be held to determine the rights of the respective parties. The hearing was duly held and upon the evidence submitted the register and receiver decided that when said relinquishment was filed in the district land office, Dunlevy's claim intervened and operated as a bar to the claim of Cleveland. On appeal, your office affirmed the decision of the register and receiver, as above stated.

It is shown by the testimony that Dunlevy settled upon said tract after the filing of said declaratory statement, but prior to the date of Bartholomew's entry, and continued to reside thereon up to the time of said hearing. Dunlevy's improvements consist of a house eight by ten feet, with an addition of equal size, a barn twelve by twelve feet, and twenty-two acres of breaking, all worth about $170.00.

Cleveland is shown to have purchased the improvements of Bartholo mew, although he had not paid any portion of the purchase money, and he claims said tract by reason of said purchase and Bartholomew's relinquishment, which was filed by him. Cleveland's improvements are valued at about $225.00.

It is quite clear that Cleveland could acquire no rights as against Dunlevy by the purchase of Bartholomew's improvements and possessory claim. The land was not segregated when Dunlevy settled upon it, and his right was subject only to Bartholomew's claim, which was relinquished prior to the expiration of three months from the date of Dunlevy's settlement. Cleveland does not claim that he was an actual settler upon the land until May 10, 1883, while it appears that Dunlevy was an actual settler from November 27, 1882. It was irregu lar to allow Dunlevy's entry while the entry of Cleveland was extant upon the records of the district land office. It appears that after the decision of the register and receiver in said case, an affidavit was of fered by said Cleveland, signed by himself and corroborated by two witnesses alleging that since the time of said hearing, Dunlevy has abandoned said land. Said affidavit was rejected by the register, because the witnesses signed with a pencil, and an appeal was taken to your office. The affidavit is insufficient, if it was intended as an affida

vit of contest, because the length of time of the abandonment is not stated.

Your office decision held that said allegation was immaterial, and that your office would not consider in the case at bar any question of abandonment arising since the trial.

There can be no question that Cleveland has the right to contest said entry upon the ground of abandonment after the adjudication of the present case by this Department. In view, however, of the said allegation of abandonment by Dunlevy, Cleveland's entry will remain suspended for sixty days to enable him to initiate a contest against Dunlevy's entry, and in case Cleveland fails to commence said contest within the time specified and prosecute the same successfully, then his entry should be canceled.

The decision of your office is modified accordingly.

PRE-EMPTION—SETTLEMENT-RELINQUISHMENT.
TILTON v. PRICE.

A pre-emptor can acquire no rights to a tract of land by settlement and residence thereon while the same is occupied and under the control of another.

A relinquishment takes effect immediately upon being filed, and the tract so relinquished becomes at once public land and subject to entry by the first legal applicant.

When a relinquishment, accompanied by application for entry or filing, is transmitted for the consideration of the General Land Office and the relinquishment is held valid, under the act of May 14, 1880 the land is open to entry at the date of filing said relinquishment and the right of the applicant relates back.

Secretary Lamar to Commissioner Sparks, August 28, 1885.

I have considered the case of Alvarado D. Tilton v. Charles M. Price, on appeal by Tilton from your office decision of July 12, 1884, holding for cancellation his pre-emption declaratory statement No. 10,255, for Lots 3, 4, 5 and 6 of the NW. Sec. 6, T. 112, R. 75 W., Huron, Da kota Territory.

The facts as shown by the record are as follows: On October 9, 1882, Charles M. Price filed pre-emption declaratory statement 25, for the NW. of said Sec. 6, which included Lots 3, 4, 5, 6, 11, 12, 13 and 14, and contained 316.43 acres, alleging settlement April 1, 1882; and on May 4, 1883, the local officers at Huron permitted him to make cash entry No. 2845 for the entire quarter.

On April 17, 1884, your office, upon receiving, through the local office, a petition of Tilton, alleging that on May 23, 1883, he settled on Lots 3, 4, 5 and 6 of said quarter-said lots being an excess of one hundred and fifty-seven acres-established his residence and made val

uable improvements thereon, and praying that the cash entry of Price as to the excess be set aside, and his filing for said Lots 3, 4, 5 and 6 allowed, transmitted to the local office at Huron a letter containing the following instructions, relative to the land in controversy:

"You will notify Price that he will be allowed to elect what portion of the land embraced in his entry he will retain, the same to be in a compact form, to approximate 160 acres, and to be that portion upon which his residence and principal improvements are located."

Upon being notified, as required by said instructions, Price, on May 27, 1884, relinquished his entry as to said Lots 3, 4, 5 and 6, applied for a repayment of the purchase money for the same, and at the same time applied to enter said lots under the homestead law, submitting in support of his homestead application an affidavit, corroborated, to the effect that he made settlement in good faith on the entire quarter of said section, and commenced improvements on Lots 3, 4, 5, and 6; that he continued to cultivate and improve the same, and at that time bad nearly thirty acres under cultivation, his improvements and crop being valued at $500; that he built a house and commenced his residence on said tract May 25, 1884. On May 27, 1884, Tilton asked to be allowed to file his pre-emptiou declaratory statement for said Lots 3, 4, 5 and 6, alleging settlement May 28, 1883, which application was rejected on the ground that he could acquire no rights by a settlement on a tract of land, which, at the time of his settlement, was covered by a cash entry.

On June 11, 1884, your office canceled the entry of Price as to said lots 3, 4, 5 and 6, and gave him the preference right to enter said lots under the homestead law, holding that, under the rules, his said application of May 27th could not be considered. On June 18, 1884, the local office noted the cancellation of Price's entry, and permitted him to make homestead entry 8644, for said Lots 3, 4, 5 and 6. On June 19, 1884, Tilton was allowed by the local office to file pre-emption declaratory statement No. 10,255, for said lots 3, 4, 5 and 6, alleging settlement June 4, 1884. From this action of the local office, in accepting and putting to record the said pre-emption declaratory statement of Tilton, Price duly appealed to your office, which on July 12, 1884, sustained the appeal of Price, and held for cancellation the aforesaid preemption declaratory statement of Tilton. Thereupon, Tilton duly appealed the case to this Department.

This case is governed by three well-settled principles of law:

First. A pre-emptor can acquire no rights to a tract of land by settlement and residence thereon while the same is occupied and under the control of another. "The right of pre-emption only inures in favor of a claimant when he has performed the conditions of actual settlement, inhabitation, and improvement. As he cannot perform them when the land is occupied by another, his right of pre-emption does not extend to it." Atherton v. Fowler (96 U. S., 513). Hosmer v. Wallace (97 ib., 575), and numerous departmental decisions.

Second. A relinquishment takes effect immediately upon being filed in the local office, and the land so covered by the entry thus abandoned, at once becomes public land, and is subject to entry by the first legal applicant. Sec. 1 act of May 14, 1880 (21 Stat., 140); Whitford v. Kenton (3 L. D. 343); Glaze v. Bogardus (2 ib., 311); Wm. C. Young (ibid., 326).

Third. When a relinquishment accompanied by application for entry or filing is transmitted for the consideration of the General Land Of fice, and the relinquishment is adjudged valid, by virtue of the first section of the act of May 14, 1880, the land becomes subject to disposal at the date of filing it, and the right of the applicant relates back. Sim v. McGrew (2 L. D., 324); Commissioner's instructions of January 12, 1883 (10 C. L. O., 223).

Applying the law as herein set forth to the facts in this case, it will be seen that at the time Tilton went upon the land and made his alleged settlement thereon, he was, in the eyes of the law, a trespasser; consequently, he could acqure no rights under a settlement made upon the land May 28, 1883, inasmuch as the cash entry of Price was still intact. Neither could he acquire any rights to the land under a settlement made thereon June 4, 1884, under the third rule above stated.

Price appears to have acted in good faith in all his proceedings. He was permitted by the local officers to enter the entire quarter aforesaid, and they accepted his money for the same. Upon being notified that he could not hold more than one hundred and sixty acres of the tract under the pre-emption law, he immediately relinquished the excess, and at the same time applied to enter such excess under the homestead law, this being the only method he could pursue to retain the fruits of his labor and expenditure of money on such excess. This application of Price should have been allowed under the third rule above stated, and because of his superior equity. His relinquishment was adjudged valid and his application accompanying the same related back to the date of the filing thereof.

It is difficult to see how or in what manner a pre-emptor's right could attach to the land between the relinquishment and the filing of the homestead application, as they appear to have been made simultaneously. Under the supreme court decisions and numerous departmental rulings applicable to this case, I think that the facts herein clearly warrant the conclusion that at the time Price made his homestead application he was the first legal and equitable applicant, and was, therefore, entitled to enter the land in controversy.

Barring the modification indicated above, your office decision is affirmed. Tilton's pre emption declaratory statement will be canceled, and the homestead entry of Price allowed to stand as of the date of May 27, 1884.